National Conventional Arms Control Amendment Bill [B45-2008]: deliberations & voting

Meeting report

The Committee continued working through the working draft of the National Conventional Arms Control Amendment Bill.

Clause 17 Substitution of Section 23 of Act 41 of 2002
The Chairperson referred to Section 23(2), and expressed disquiet regarding the sequence of reporting by the National Conventional Arms Control Committee (NCACC) to the United Nations (UN). He argued that any report that must be submitted to the UN should be tabled in Parliament first.

Mr R Shah (DA), Mr V Ndlovu (IFP), Ms P Daniels (ANC) and Mr S Ntuli (ANC) all echoed the sentiments expressed by the Chairperson.

Dr E Schoeman (ANC) explained that the whole matter of reporting started when the Committee identified the fact that in the past, the report that was submitted to the UN had contained far more information than the reports that were tabled to the Committee. To address this imbalance, the Department of Defence (DoD or Department) had made an undertaking that the reports tabled to the Committee would contain at least the same information as that which was submitted to the UN. Also, it was agreed that the Committee would have the right to further detail if so required.

Mr Dumisani Dladla, Director: NCACC, DoD, indicated that the Department was not averse to Parliament viewing the report before it was submitted to the UN. In light of that, he proposed that the word “after” be substituted with “before” or “prior”. He assured the Committee that the Department would table the report in good time to Parliament to allow sufficient time for consideration and to ensure that this process did not interfere with the country’s reporting obligations to the UN. In addition, he clarified that the report that would be presented to Parliament would contain far less information than the NCACC’s quarterly reports (to the Committee) because the UN only requested information on seven categories.

Members were satisfied with the Department’s response.

Mr Shah requested the Department to insert a definition for the word “transfers”, as contained in Section 23(3).

Mr Siviwe Njikela, Director: Legal Support, DoD, noted that the principle had already been established that the NCACC should report to Parliament on all its activities. In order to accommodate the Member’s concern, he proposed that the collective term “transfers” be replaced with a list of the different areas that must be covered in the annual report. These included the export, import, conveyance and contracting of all controlled items.

The Committee agreed with this recommendation.

Mr Theo Hercules, Principle state Law Advisor, Office of the Chief State Law Advisor, cautioned that it would be necessary to check from a drafting perspective whether the proposed definition was used only once or several times throughout the Bill.

Mr Shah noted that Section 23(3)(b)(ii) did not allow for the disclosure of the quantity of controlled items, in an annual report to Parliament, in cases where there was a confidentiality clause in the contract of sale. Accordingly, he voiced concern that Parliament would be prevented from having access to critical information.

Mr Dladla recalled that the Department had agreed on a matter of principle that no contract of sale should preclude Parliament from having access to all relevant information.

Mr Njikela noted that Parliament had a right to call for any information from the NCACC. However, in as much as the NCACC wanted to share all the information with Parliament, the reality was that in the security sector, certain things could not be revealed in a public document (annual report). Moreover, he clarified that the provision provided the Department with a basis in law to withhold information form the public. Lastly, he suggested that this issue could be overcome by an arrangement between Parliament and the NCACC, where the latter disclosed all sensitive information either in a closed meeting or by means of a separate report.

Mr Shah appreciated that there may be instances where the Department would not want certain information to be made public. However, he was concerned the agreement was not reflected in the Bill.

The Chairperson recalled that this mater had been discussed in a previous meeting and that the Committee had arrived at a conclusion that nothing would be withheld from Parliament.

Dr Schoeman proposed the insertion of the following words at the end of the current provision “…in which case all relevant information would be provided on a confidential basis.” He believed that this would solve the problem and avoid any ambiguity.

Mr Njekela proposed an alternative wording, which read as follows “…provided that parliament may call for such information”. He added that the Department would work with the State Law Advisor to formulate the exact wording.

The Committee accepted this explanation and did not pursue this matter any further.

Reduction in the members of the NCACC
Given the challenge in getting all the ministers to meet, Ms Daniels recommended that the composition of the NCACC be diluted.

Mr Ntuli disagreed with the suggestion.

Mr Ndlovu argued that all the ministers who served on the NCACC did so because of a particular reason. He maintained that it was not necessary to interfere with the make-up of the NCACC.

The Chairperson contended that it was Parliament’s responsibility to call the executive to account and to ensure that they performed their functions.

Mr M Moatshe (ANC) believed that there was a particular responsibility on the chairperson of the NCACC to ensure that the entity convened and accounted to Parliament.

Dr Schoeman believed that the Committee should not express an opinion on this matter because it was not addressed in the Bill.

No further issues were highlighted on this matter.

Clause 9 amending Section 12 of Act 41 of 2002
Mr Shah stated that the provision did not clarify what benchmarks and performance indicators the Auditor-General (AG) would use when doing an audit of the NCACC. In view of that, he enquired whether it was necessary to define the word “affairs” to assist in that regard.

Mr Dladla explained that the AG had requested Department to substitute “financial records” with “affairs” so as not to restrict his function. On matters of auditing in the country, no other subsidiary legislation superseded the AG’s founding legislation. The NCACC was convinced that the provision did not preclude any powers that the AG had, and that it could audit about everything even if there was no reference to it in law. In addition, he explained that the Department was reluctant to define a word when it carried its ordinary grammatical meaning in the context of a Bill. Finally, he informed Members that the auditing would be conducted according to international standards.

Mr Shah was satisfied with the explanation.

Clause 14  Substitution of Section 17 of Act 41 of 2002 [End-User Certificates (EUCs)]
Mr Shah expressed concern that Section 17(4) imposed a discretionary obligation as opposed to a mandatory requirement on the NCACC to issue EUCs.

Mr Dladla explained that EUCs were aimed at protecting intellectual property as well as guaranteeing that the purchasing country would not resell or re-export an item without the consent of the export country. However, he noted that there may be instances when an exporting country would not require such an undertaking. As a result, the Bill did not make this mandatory and catered for situations where the exporting country did not require any undertaking.

Mr Shah accepted the clarification.

Clause 19  Insertion of Section 24A in Act 41 of 2002 [Administrative Fines]
In respect of Section 24A(3)(b), Mr Shah argued that the term national security interest was too broad and open to subjective interpretations, and therefore needed to be defined. By way of example, he provided the Department with a formulation that was crafted by the Intelligence Committee with regards to the Protection of Information Act. He acknowledged that the Intelligence Committee’s definition was not 100% but at least it set a criterion to which the term could be measured against.

Mr Njikela was glad that Mr Shah had shared with the Department information about the discussion that was taking place with regard to the Protection of Information Bill. He admitted that it was difficult to create a definition because whatever way it was defined, it was always likely to be broad. In addition, the Department was reluctant to hazard a definition within the context of the Bill because it believed that there were other pieces of legislation that were better placed to do that. Lastly, he advised that in the interim, this matter should be determined on a case by case basis.

The Committee accepted the explanation that was offered by the Department.

Testing of Equipment
Dr Schoeman questioned whether there was any guarantee in the Bill that the weapons that were exported to another country for the purpose of testing would be used in an appropriate manner and not used to undermine another state.

Mr Dladla explained that in the defence trade industry, the buyer would test the equipment to determine that it could withstand the rigours of circumstances. There were specific guidelines in place to ensure that the equipment would be used in an appropriate manner. These guidelines were similar to those followed for items that were exported on a permanent basis. 

The Chairperson noted that the Committee intended to vote on the Bill today and suggested that the Department be afforded the opportunity to incorporate all the latest amendments into the Bill.

Afternoon session

The Committee reconvened and went through the final list of amendments to the Bill:

Clause 1 amending Section 1 of Act 41 of 2002
The Department of Defence (DoD) proposed that “of ownership” be inserted after “transfer” in Clause 1(h).

The Committee agreed that the “Scrutiny Committee” would be omitted from the Bill, hence the deletion of Clause 1(r) that dealt with the definition of “Scrutiny Committee”.
           
Clause 3 amending Section 4 of Act 41 of 2002
Mr Dladla noted “or services” had been inserted after “assistance” on page 5, line 8 whereas the rest of the amendments saw the insertion of “and possession of” as the NCACC work related to the issue of transfer as well as the trade in and possession of controlled items, prohibition of mercenary activity and rendering of certain assistance or services in a country of armed conflict.

Clause 5 inserting 7A, 7B and 7C in Act 41 of 2002
Clause 5 had been rejected on the basis of an agreement that had been reached between the DoD and the Committee on whether there was a need for a “Scrutiny Committee”. It was thus omitted from the Bill.

Clause 6 amending Section 8 of Act 41 of 2002
Clause 6 was initially drafted to accommodate the establishment of the “Scrutiny Committee” and due to the agreement that had been reached between the DoD and the Committee, it was thus omitted from the Bill.

Clause 7 amending Section 9 of Act 41 of 2002
The amendment to Clause 7had been made to align it with previous clauses that dealt with the same subject matter.

A new sub-clause had been added as Section 9(7) due to an agreement that had been reached between the DoD and the Committee. This new sub-clause would strengthen and enhance the work and relationship between inspectors and police.

Clause 8 amending Section 11 of Act 41 of 2002
Mr Dladla noted that the clause that referred to the “Scrutiny Committee” had been rejected upon agreement between the DoD and the Committee. The provisions in the principal Act would remain as is.

Clause 9 amending Section 12 of Act 41 of 2002
“Financial records” had been omitted and substituted with “affairs” to accommodate the issues raised by Mr Shah on the powers of the Auditor-General (AG). The AG would now be able to audit everything that related to the NCACC and not just its financial records.
 
Mr Shah noted that he was satisfied with the amendment that had been made as it addressed the concerns that he had raised earlier.

Clause 10 amending Section 13 of Act 41 of 2002
A new subparagraph had been inserted, Section 13(2(g), that addressed the concerns raised by Armscor on the issue of the upgrade and maintenance of controlled items. This subparagraph dealt with the issue of exemption, but did contain certain conditions that had to be met, before an exemption was granted.

Some technical amendments were:
On page 7, in line 37 an amendment had been proposed as the DoD considered it an over-statement as it was already catered for in the Bill.

On page 8, in line 10 the correct citation of the relevant Act had been made to align it with the ruling regulatory framework.

On page 8, in line 34 “of” had been inserted after “13(2) “ that rectified the grammatical sequence of the sentence.

Clause 17 amending Section 23 of Act 41 of 2002
The original caption had been retained as it accommodated all the content of the clause.

A new paragraph had been inserted, Section 23(c), that addressed concerns raised by Mr Schoeman. This was thus the outcome of lengthy deliberations between the Committee and the DoD on the issue of quarterly reports as the initial suggestion had been to do away with quarterly reports to Parliament.

The NCACC as a matter of requirement would now table the report to Parliament first, before the report was tabled to the United Nations.

Mr Dladla added that as a result of a discussion that was held on whether the public would have access to information, the Bill would now as a matter of principle provide for the NCACC to submit information to Parliament on a confidential basis. There was a need however to reach consensus as to how this information would be conveyed to the public.

The Committee indicated that it was pertinent for the drafters to define adequately the parameters that defined transfers. The subsequent amendment spoke to that.

Mr Schoeman said that the numbering sequence did not make sense.

Mr Theo Hercules (State Law Advisor) noted that the numbering would be changed in the B version of the Bill.

Clause 18 amending Section 24 of Act 41 of 2002
A consequential amendment had been made to Section 24(a) as a lot of changes had been made to the Bill.

Section 24(b) had been amended as the Committee had indicated that there was already a law enforcement agency that dealt with asset forfeiture and that the Secretary of Defence's line function did not include that of asset forfeiture.

Clause 21 substitution of Section 27 of Act 41 of 2002
Mr Dladla indicated that during a previous occasion one of the members indicated that people normally said “terms and conditions” and not the other way around. The amendment thus addressed this.

Long Title
A consequential amendment had been made to the long title, by omitting “Scrutiny Committee”.

Explanatory Memorandum on the Objects of the Bill
New terms had inserted, whilst others referring to the “Scrutiny Committee” had been omitted as it was no longer part of the Bill. The issue of the end-user certificate had also been addressed and updated to include that of exemption as well as the prescriptions under the regulations. On the matter of disclosure, the Memorandum now addressed the new provision that allowed the NCACC to report on everything as well as submitting its report to Parliament first, before it was tabled before the United Nations.

The Memorandum clarified the issue of exemption for the SANDF and the SAPS as it would ensure that there would be no undue loopholes. Under this provision no arms would thus be exported or conveyed to countries that experienced a coup d’etat as it did not constitute a legitimate emergency.

The cross-referencing section had been split in two sections that documented the relevant statutes and their relevant justifications. The memo also clarified that there were other agencies of government that had different line functions, but with established boundaries that still encouraged close partnerships between them.

Voting on the Bill
The Motion of the Desirability was read and the Bill was passed with amendments.

Mr Ntuli thanked the drafters of the Bill for their perseverance and Mr Schoeman thanked the Members for their valuable input during the processing of the Bill.

The Chair adjourned the meeting.